Advocates:
['JAGANNATH JAYANT MULGAONKAR', '', 'JAYANT PANDURANG MULGAONKAR', 'ADV ABHAY NACHINOLKAR', 'FOR R NO']

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IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO.82 OF 2012

Vinod Arlekar,

Son of Ramchandra Arlekar,

Married, about 47 years of age,

R/o. New Waddem,

Second Temple, Vasco-Goa.

…. Petitioner

V/s

1. Yesh A. Arlekar,

Minor, Son of Vinod Arlekar,

Through his mother,

Babita V. Arlekar alias

Babita Exembkar,

Age 41 years,

R/o. C/o. Adelina Lourenco,

H.No.192, Bondir, Santa Cruz,

Panaji-Goa.

2. State of Goa,

Through the Public Prosecutor,

through the office of

Learned Advocate General,

High Court Complex,

Altinho, Panaji, Goa.

…. Respondents

Shri J.J. Mulgaonkar, Advocate for the Petitioner.

Shri A. Nachinolkar, Advocate for Respondent No.1.

Ms. M. Pinto, Additional Public Prosecutor for Respondent No.2.

CORAM : F.M. REIS, J.

DATE : 17^th DECEMBER, 2012

ORAL ORDER:

Heard Shri J.J. Mulgaonkar, learned Counsel appearing for the

petitioner and Shri A. Nachinolkar, learned Counsel appearing for

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respondent no.1 and Ms. M. Pinto, learned Additional Public

Prosecutor appearing for respondent No.2.

2.

Rule. Heard forthwith with the consent of the learned Counsel.

Learned Counsel appearing for the respondents waive service.

3. The above petition filed under Section 482 of the Code of

Criminal Procedure Code, 1973 seeks to quash and set aside the

judgment and order dated 31/07/2012 passed by the learned

Additional Sessions Judge, Fast Track, South Goa, Margao in

Criminal Revision Application No.77/2011 and the order dated

20/09/2011 passed by the learned Judicial Magistrate First Class,

Vasco in Maintenance Application No.4/2010/C.

4. Briefly, the facts of the case are that the respondent no.1

claiming to be the son of the petitioner filed proceedings for

maintenance under Section 125 of the Criminal Procedure Code. The

fact that the respondent no.1 is the son of the petitioner has been

disputed by the petitioner in his reply.

5.

During the course of the recording of evidence in support of the

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case put forward by the respondent no.1, an application came to be

filed by the said respondent to subject the petitioner for paternity test

by application dated 6/08/2011. The said application came to be

opposed by the petitioner inter alia on the ground that such

application was not maintainable in proceedings under Section 125 of

the Criminal Procedure Code and further that the petitioner had no

access to the the mother of the respondent no.1 and consequently the

question of claiming that respondent no.1 was the son of the

petitioner would not arise. It is further their case that the respondent

no.1 has not brought any prima facie evidence to establish that such

paternity test is to be ordered by the Court.

6.

After hearing the parties, the learned JMFC by order dated

20/09/2011 directed the petitioner to subject himself to paternity test.

Being aggrieved by the said order the petitioner preferred a Criminal

Revision before the learned Additional Sessions Judge which came to

be dismissed by judgment dated 31/07/2012. Being aggrieved by the

said judgment the petitioner filed the above petition seeking to quash

the said orders passed by the Courts below.

7.

Shri J.J. Mulgaonkar, learned Counsel appearing for the

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petitioner has assailed the impugned orders on the ground that the

respondent no.1 has failed to establish that his mother had any access

to the petitioner and consequently the question of the petitioner

establishing no access cannot be accepted. The learned Counsel

further pointed out that the question of directing paternity test in the

proceedings under Section 125 of the Criminal Procedure Code is not

at all justifiable. The learned Counsel has thereafter taken me

through the material on record and pointed out that there are

contradictions on the part of the mother of the